[Redacted], Nathan G., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Aug 17, 2021

Appeal No. 2020003125 (E.E.O.C. Aug. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nathan G.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020003125 Agency No. DLAF-19-0093 DECISION On April 15, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 11, 2020 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. Complainant worked as an Information Technology Specialist, NF-2210-04, at the Agency’s Morale, Welfare, and Recreation (MWR) Office in Fort Belvoir, Virginia. On May 14, 2019, Complainant filed a formal complaint in which he alleged that the Agency subjected him to discrimination and a hostile work environment on the bases of disability (sleep apnea, hypersomnia, asthma) and in reprisal for prior protected EEO activity when: 1. Between 2016 and 2019, Complainant’s second-level supervisor (S2) directed Complainant’s colleagues to monitor his arrivals and departures and to photograph him whenever he fell asleep at his desk; 2. On July 25, 2016, at the direction of S2, the Marketing/Commercial Sponsorship Chief, his immediate supervisor until November 2016 (S1), issued Complainant a written reprimand, changed his work hours, and cancelled his regular day off; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020003125 2 3. On an unspecified date in November 2016, S2 did not promote Complainant into an NF-5 Information Technology Customer Support position; 4. On November 30, 2016, S1 issued Complainant a notice of proposed five-day suspension which was upheld by S2 on December 7, 2016; 5. Since 2017, S2 suspended Complainant’s telework privileges while allowing at least one of his colleagues to telework on a regular basis; 6. On February 2, 2017, the Information Technology Chief, Complainant’s first-line supervisor between December 2016 and June 2017 (S1a) issued Complainant a six-day suspension which was sustained by S2 on February 7, 2017; 7. Since 2018, S2 forced Complainant out of the Agency’s fitness program; 8. On January 22, 1919, Complainant learned from the personnel security director that S2 had reinitiated Complainant’s security clearance investigation; 9. Near the end of January 2019, S2 had contacted the government travel credit card desk and found out that Complainant’s delinquent government credit card had been referred to a collection agency; and 10. On February 26, 2019, Complainant was given a directed reassignment and a new position description without consultation from himself or his immediate supervisor since July 2017, the Support Manager (S1b). 2 At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a final agency decision. The Agency subsequently issued its final decision finding that Complainant was not subjected to discrimination or reprisal. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment To prevail on his disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). 2 For clarity, the incidents have been reordered in chronological order. 2020003125 3 The prima facie inquiry may be dispensed with in this case, however, since S1, S1a, and S1b articulated legitimate and nondiscriminatory reasons for S2’s actions vis-à-vis Complainant.3 See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With regard to incident (1), S1, S1a, and S1b averred that S2 was becoming frustrated with Complainant falling asleep at his desk and had instructed them to monitor Complainant’s arrivals and departures and to take pictures of Complainant asleep in his work area to provide documentation for disciplinary action. The Agency’s human resources office later instructed them to cease this practice. S1b noted that even though Complainant never provided medical documentation of his condition despite her numerous requests, she nevertheless accommodated him by giving a sit-down/stand-up desk and by ordering a doze-alert device for him. IR 238-39, 242, 256, 268, 270-71. With respect to incident (2), S1 averred that he issued the reprimand in consultation with S2 due to Complainant falling asleep at his desk. S1 denied changing Complainant’s work hours. Rather, he stated that he told Complainant that if he needed to change his work hours on account of being tired, they could talk about it. As to removing Complainant’s regular days off, S1 averred that S2 had made the decision to cancel those off-days because Complainant was the only responsible party for the MWR’s IT systems, and consequently, that he was needed in the office. Regarding incident (3), Complainant affirmed that S2 was the selecting official and that she told him that she had selected S1a for the position because he had regional experience. S1b opined that S2 did not think Complainant was trustworthy due to his attendance problems. S1 stated that he was on the selection panel for the position and that S1a was selected because of his experience managing MWR’s IT systems and programs. IR 213, 248, 274-75. Concerning incident (4), S1 asserted that, in consultation with S2 he issued the first suspension due to Complainant sleeping on the job and not providing a doctor’s note documenting that he had a medical condition. IR 274. As to incidents (6), (8) and (9), according to the affidavits of S1, S1a, and S1b, each of these actions arose out of Complainant’s misuse of his government travel credit card, which had resulted in Complainant being $14,000 in debt and his account being referred to a collection agency. IR 243, 246, 259-60, 271. 3 S2 did not participate in the EEO investigation despite the EEO investigator’s attempts to obtain an affidavit from her on three separate occasions. IR 181, 229-34. S1b indicated that S2 had been removed from her position but did not give a reason as to why she believed this to be the case. IR 249. 2020003125 4 With regard to incident (5), S1b averred that Complainant’s telework agreement had been canceled because of the disciplinary action taken against him due to his falling asleep at work, in accordance with Agency policy guidelines mandating the cancellation of telework in the event of such action. She also averred that Complainant did not ask to have his telework privileges reinstated. In addition, she confirmed that the individual to whom Complainant compared himself was a supervisor, not a peer of Complainant. S1 and S1a both stated that when they were Complainant’s supervisors, telework was not available to anyone on the IT staff. IR 245- 46. 259, 273. With respect to incident (7), S1b affirmed that she did not believe that S2 forced Complainant to leave the fitness program. Both she and S1a noted that Complainant was currently participating in the program. IR 245, 258. Regarding incident (10), S1a asserted that both he and Complainant received notifications of the directed assignment and that the position descriptions for all staff in the MWR office, not just IT were being reviewed and updated. IR 254-55. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). When asked by the EEO investigator why he believed that the explanations proffered by S1, S1a, and S1b were pretextual, Complainant maintained that S2 had wanted to discipline him for sleeping on the job and for the fact that he had asked for a reasonable accommodation. He also averred that the actions against him had increased when he began pursuing the reasonable accommodation process, and that the fact that his accommodation requests were approved had made S2 angrier. IR 201-06, 208-09, 211-12, 214, 216. Beyond these, his own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself which contradict or undercut the explanations put forward by S1, S1a or S1b, or which cause us to question their veracity as witnesses. There does appear to be evidence of a deviation from standard procedures in connection with S2 ordering her subordinates to take pictures of Complainant asleep at his desk as well as S2’s failure to seek input from S1b regarding the directed reassignments and position description changes. 2020003125 5 S1b also stated that to her, it appeared that S2 disliked Complainant. However, S1b attributed this to S2’s frustration about Complainant not fulfilling his responsibilities as a member of the IT support staff. When asked if she believed that S2 harbored unlawful considerations of Complainant’s medical condition or his reasonable accommodation request, S1b emphatically answered, “no.” IR 241-44, 246-48. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Accordingly, on the basis of that evidentiary record, we agree with the Agency that Complainant has not established that any of the incidents described in his complaint are attributable to any unlawful considerations of his protected classes. To the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). 2020003125 6 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020003125 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations August 17, 2021 Date